January 16, 2007 Mr. Paul M. Isabella P.O. Box 8967 The Woodlands, Texas 77387
EXHIBIT 10.33
January 16, 2007
Xx. Xxxx X. Xxxxxxxx
P.O. Box 8967
The Woodlands, Texas 77387
P.O. Box 8967
The Woodlands, Texas 77387
Dear Xxxx:
I believe we have fully discussed the terms of your departure from Xxxxxx US, Inc. (“Xxxxxx”).
However, I thought it would be beneficial to reduce our understandings to writing in this Agreement
to avoid any misunderstandings at a later date. Xxxx, in making these arrangements, we have
carefully considered the services you have rendered and the contributions you have made while
working at Xxxxxx.
Announcements and Transition
On December 1, 2006, you received Xxxxxx’x thirty (30) day written notice (the “Notice Period”) to
you that effective January 2, 2007, your role as Executive Vice President, Xxxxxx Connection, would
end. During the Notice Period, in addition to your normal responsibilities, you agreed to
participate in such communications with Xxxxxx management and other parties as may be necessary or
helpful to ensure that this management transition would not have any adverse impact on current and
future operations and/or financial results at Xxxxxx. Effective January 2, 2007, when your active
employment terminated, and throughout the salary continuation period up to and including June 30,
2007, (the “salary continuation period”) you have agreed to continue to assist us in an orderly
transition of your management responsibilities and to provide reasonable consulting services to
Xxxxxx. Such consulting services will not exceed an aggregate of 240 hours during the salary
continuation period.
Salary and Benefits Continuation
We have mutually agreed that your active employment ceased as of January 2, 2007, but that you will
continue to receive your current salary ($35,000.00, on a monthly basis) through June 30, 2007.
These guaranteed payments exceed and are in lieu of benefits for which you may be eligible under
Xxxxxx’x Separation Allowance Plan and will continue even if you should find alternate employment.
It is understood that no bonuses or vacation will be earned during your salary continuation
period. Your remaining accrued but not taken current year vacation days will be paid out in a lump
sum.
We have also agreed that your salary and benefits continuation period may be extended for up to six
(6) additional months on a month-to-month basis, and in no event later than through December 31,
2007, in the event you remain unemployed as of the completion of the six (6) month salary and
benefits continuation period despite a diligent and ongoing job search. (In the event you will
require this extended benefit phase, please advise me by June 15, 2007, to ensure this occurs).
You will not be eligible for the additional salary and benefits continuation once new employment
has been obtained. Such salary and
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benefits continuation will cease effective on the last day immediately proceeding the date you
commence your new employment.
In accordance with Sections IV and VI of the Xxxxxx Industries Amended and Restated Management
Annual Incentive Plan, you acknowledge that you will not be eligible to receive any portion of the
2006 Management Annual Incentive Award, which is hereby forfeited in its entirety.
As discussed above, we have also agreed that, if requested, you will be available to provide
reasonable consulting services to facilitate a smooth management transition during the period from
January 2, 2007 to June 30, 2007, including any extension. These services will be provided at
mutually agreeable times that do not unreasonably interfere with your personal plans. In addition,
at the request of Xxxxxx or any of its related entities you have agreed to assist us in any
threatened or actual litigation concerning it or them, where you have in your possession or
knowledge any facts or other matters which we reasonably consider is relevant to such legal
proceedings (among other things, giving statements/affidavits, meeting with our legal and other
professional advisers, attending any legal hearing, and giving evidence during your salary
continuation period. We will reimburse you for reasonable expenses properly incurred by you in
giving such assistance. If such assistance is required after the completion of your salary
continuation period, including any extension, we will pay to you Two Hundred Dollars and No Cents
($200.00) per hour for any time required.
Group insurance coverage, i.e., life, medical and dental, will continue during your salary
continuation period, including any extension, unless you sooner receive alternate coverage with
another employer even if this alternate coverage is less comprehensive. You have agreed to notify
us if and when such coverage becomes effective. You will continue to be responsible for the
appropriate employee contributions toward medical and dental insurance in order to be eligible for
coverage. Such contributions will be on the same basis as if you were an active employee. Other
non-contributory welfare benefits (business travel & accident) will terminate on your last day of
active employment. Voluntary optional life and AD&D coverage may be continued through ongoing
contributions.
You will receive a letter regarding your eligibility for eighteen (18) months of continuing medical
and dental insurance coverage under the federal COBRA law. If you wish to continue medical and
dental coverage after your salary continuation period you will need to accept the offered coverage
within sixty (60) days of your last day of work. COBRA coverage will run concurrently with the
salary continuation period. Once salary continuation ceases you will need to make monthly premium
payments directly to the insurance carrier in order to maintain medical and dental coverage.
Outplacement
Xxxxxx will provide you access to outplacement services through Right Management Consultants at
Company expense for up to one year from your termination of employment.
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Xx. Xxxx X. Xxxxxxxx
January 16, 2007
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Pension
You
are covered by the Salaried Employees’ Retirement Plan (the Plan) of Xxxxxx Industries, Inc.
In accordance with the Plan, Company contributions made on your behalf are 33% vested after three
years of service, 67% vested after four years, and 100% vested after five years of service. Plan
provisions also govern the payment of benefits. Because you have less than three years of service
with the Company, no contributions made on your behalf are vested and, therefore, will be
forfeited.
Savings Plan
You are currently a participant in the Xxxxxx Savings Plan (CO-SAV). You may check your
account balance at any time by contacting Diversified Direct at 0-000-000-0000 or by visiting the
Diversified Direct website at xxx.xxxxxxxxx.xxx.
Employee contributions plus Company matching will continue for separation allowance payments
received for the period up to and including December 31, 2006, or the end of your separation
allowance payments, whichever is earlier. Employee contributions plus Company matching will cease
no later than January 1, 2007.
Your CO-SAV account balance may be distributed to you after December 31, 2006, or at the end of
your separation allowance period, whichever is earlier. Distribution cannot be requested while
contributions are being made.
If you elect to leave your account in the plan you will continue to receive quarterly Participant
Statements until your account is distributed. You may request distribution at any future date
before you reach age 701/2 by calling Diversified or visiting the Diversified Direct website.
Stock Options
According to our records, you currently hold Non-Qualified Stock Option (NQSO) grants issued in
2005 and 2006. A summary of current vested and non-vested options issued to you is attached.
Non-qualified stock options granted to you pursuant to an agreement dated February 13, 2006, will
terminate automatically on January 2, 2007, in accordance with Section 1(a) of such agreement,
since you will not be actively employed for one (1) year following the grant date. 10,000
Non-qualified stock options currently vested at $70.94 and 13,333 non-qualified stock options
currently vested at $65.36 awarded on April 18, 2005, will remain exercisable until ninety (90)
days after your active employment with Xxxxxx ceases, or April 2, 2007, after which date all
outstanding options will automatically terminate and cease to be exercisable. 10,000 non-qualified
stock options at $70.94 granted to you pursuant to an agreement dated April 18, 2005, will continue
to vest in accordance with the terms of such agreement as if you were actively employed on February
7, 2007 and will remain exercisable until ninety (90) days after your active employment with Xxxxxx
ceases, or April 2, 2007. Other than the vesting described in the preceding sentence, no
additional vesting of stock options shall occur following your termination of employment.
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Xx. Xxxx X. Xxxxxxxx
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Consequently, in the event you elect to exercise any options you must do so prior to April 2, 2007.
In the event you die with stock options outstanding, rights of your beneficiaries and estate will
be as outlined in the applicable Stock Option Agreement.
Performance Shares
In 2005, you received grants of Performance Shares based on the 2004-2006 and 2005-2007 cycles of
the program. These grants are administered under the terms of the Stock Incentive Plan and the
Executive Stock Incentive Agreements between you and Xxxxxx. (As used herein, all capitalized
terms are as defined in the Stock Incentive Plan and the Executive Stock Incentive Agreement
related to each grant.). Pursuant to the terms of your employment offer, the award under the
2004-2006 cycle of the program will be paid to you, in shares (net of taxes) once performance
results, and awards related thereto, are determined by the MD&C Committee of the Board of Directors
at the February 2007 meeting. Performance share grants made to you under the 2005-2007 and
2006-2008 cycles of the program will be forfeited immediately when you cease active service.
Restricted Stock Units
In 2005, you were awarded 28,000 Restricted Stock Units (“RSUs”) which were subject to restrictions
for four (4) years. Restrictions on 7,000 of those RSUs have lapsed and those shares have been
awarded to you. In accordance with the terms of your Executive Restricted Stock Agreement, the
remaining 21,000 RSUs scheduled to vest ratably on December 1, 2007, December 1, 2008, and December
1, 2009, will be forfeited immediately when you cease active service. However, the 4th
quarter dividend equivalent on these unvested shares will be paid to you on January 2, 2007.
Management
Continuity Agreement/Change-In-Control Benefits
In 2006, you entered into a Management Continuity Agreement (“MCA”) with Xxxxxx that contains
provisions that would apply in the event that a corporate Change-In-Control took place and
you were terminated or resigned with “Good Reason”. This provision is known as a “double trigger”
as both events must take place in order for benefits to become due under the MCA. Effectively
immediately, we have agreed that the MCA will terminate and become null and void. You also agree
that this constitutes sufficient notice as required by the MCA that you will not be eligible for
any payments or benefits under any MCA with Xxxxxx.
Non-Competition and Non-Solicitation
In your period of employment with Xxxxxx, the nature of your duties were such that you had access
to confidential and proprietary information including, but not limited to, the following: Company
policies, objectives, strategies and long-range plans, and plans for market and product development
that are not now and will not later become part of the public domain. As a result, we have
requested and you have
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Xx. Xxxx X. Xxxxxxxx
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agreed that under no circumstance would you use such information gained in your position with
Xxxxxx to the advantage of any competitor or to the disadvantage of Xxxxxx. Provisions for
confidentiality and non-disclosure, which remain in effect, include the Executive Employment
Agreement dated March 3, 2006, and the Invention Assignment and Confidentiality Agreement and the
Secrecy Agreement signed by you on April 19, 2005 (the “Agreements”), attached hereto and
incorporated herein by reference. We are also in agreement that you will not take with you any
documents or copies of documents or use in any way, directly or indirectly, any confidential or
proprietary information which you have gained during your employment with Xxxxxx.
Recognizing the nature and scope of your responsibilities while employed as Executive Vice
President, Xxxxxx Connection, we have agreed that during the remainder of your employment and for a
period of two (2) years following the termination of your employment, you will not become an
employee, officer, director, agent, contractor or consultant of, or advisor to, EGS/Appleton,
Xxxxxxx Inc., Xxxxxx and Xxxxx Corp., Genlyte-Xxxxxx, Acuity Brands — Lithonia Lighting, XxXxxxx,
Leviton, Littelfuse, Inc., Ferraz Shawmut subsidiary of Groupe Xxxxxxxx Xxxxxxxx, and Xxxxxxx. This
paragraph supercedes Section. 10 of the Executive Employment Agreement dated March 3, 2006, which
will otherwise remain in full force and effect. We acknowledge and agree that this language
constitutes a written amendment as specified in and required by Section. 20 of the Executive
Employment Agreement dated March 3, 2006.
During the remainder of your employment and for a period of two (2) years following the termination
of your employment, you agree that you will not, on behalf of yourself or any other person, firm,
company, business, or other legal entity, directly or indirectly employ, solicit, influence, or
attempt to influence any management, sales, technical design or engineering employee,
representative or advisor of the Company to terminate his or her employment relationship with the
Company and/or to work in any manner for you, or any entity affiliated with you. This paragraph
supercedes Section. 11 of the Executive Employment Agreement dated March 3, 2006, which will
otherwise remain in full force and effect. We acknowledge and agree that this language constitutes
a written amendment as specified in and required by Section. 20 of the Executive Employment
Agreement dated March 3, 2006.
During the remainder of your employment and for a period of two (2) years following the termination
of your employment, you agree that you will not, on behalf of yourself or any other person, firm,
company, business or other legal entity, solicit, contact, call upon, initiate communications with
or attempt to initiate communications with any customer of the Company for the purpose of selling
or providing products similar to or competitive with those manufactured by the Company. This
paragraph supercedes Section. 12 of the Executive Employment Agreement dated March 3, 2006, which
will otherwise remain in full force and effect. We acknowledge and agree that this language
constitutes a written amendment as specified in and required by Section. 20 of the Executive
Employment Agreement dated March 3, 2006.
Confidentiality
The terms of this letter and the separation-related benefits available to you from Xxxxxx are
highly personal and reflect the contributions you have made to the Company. As a result, we have
asked that you respect the personal nature of these arrangements by maintaining this information in
the strictest confidence. Consequently, we have agreed that you will reveal the terms of this
letter and the separation benefits provided to you by Xxxxxx only to your spouse, your personal tax
advisor and your attorney, and
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Xx. Xxxx X. Xxxxxxxx
January 16, 2007
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only to the extent these individuals agree to maintain the confidentiality of these matters. We
have also agreed that this information may be disclosed as required by law but only in proceedings
not initiated by you or on your individual behalf. We have further agreed that the Company may
cease further payments pursuant to this Agreement in the event the separation arrangements outlined
in this letter are disclosed other than as permitted herein or in the event you do not comply with
any obligations imposed on you pursuant to this Agreement.
Xxxx, I would appreciate it if you would make certain that any outstanding cash advances and
business expenses be reconciled as soon as reasonably possible. If not, any amounts due the
Company will be withheld from your salary during your salary continuation period. Any amounts to
which you may have been entitled will be reimbursed through the normal accounting procedures upon
submission of appropriate expense report forms.
If the foregoing clearly and fully reflects our understanding, please so indicate by signing and
returning to me the enclosed Severance Agreement and Waiver and Release. Although you may take up
to twenty-one (21) days to do so, please return the Waiver as soon as it has been signed.
Thereafter, you may revoke the Waiver of claims under the ADEA in writing within seven (7) days by
providing me with a letter stating your intent to reject the ADEA portion of the enclosed severance
package.
Sincerely,
Xxxxx X. Xxxxxxxx
Senior Vice President, Human Resources
Senior Vice President, Human Resources
JPW/sc
Attachments
Attachments
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Xx. Xxxx X. Xxxxxxxx
January 16, 2007
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January 16, 2007
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I acknowledge receipt of this document and the Waiver And Release.
/s/
Xxxx Xxxxxxxx |
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Employee Signature
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Witness | |
1/18/07 |
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Date
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Date |
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WAIVER AND RELEASE
In consideration of the Company’s agreement to provide me with 1) six (6) months of salary and
benefits continuation; 2) to provide conditional salary and benefits continuation for up to an
additional six (6) months on a month-to-month basis should I remain unemployed despite a diligent
and ongoing search that will cease effective the day immediately proceeding the date my new
employment commences; 3) out-placement; 4) 10,000 non-qualified stock options currently vested at
$70.94 and 13,333 non-qualified stock options currently vested at $65.36 awarded on April 18, 2005,
that will remain exercisable until ninety (90) days after my active employment with Xxxxxx ceases,
or April 2, 2007; and 5) 10,000 non-qualified stock options at $70.94 granted to me pursuant to an
agreement dated April 18, 2005, that will continue to vest in accordance with the terms of such
agreement through February 7, 2007, and that will remain exercisable until ninety (90) days after
my active employment with Xxxxxx ceases, or April 2, 2007, 50% of which is consideration for
release of any and all claims under the Age Discrimination in Employment Act, as amended (“ADEA”),
which I would not otherwise be eligible to receive, I hereby waive and release the Company from any
and all present employment or termination related claims, damages, actions, rights, demands, and
causes of action, whether known or unknown, arising from, but not limited to, discrimination on the
basis of sex, race, color, national origin, religion, disability or veteran status; Title VII of
the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, Sections 1981 through 1988
of Title 42 of the United States Code, as amended, the Employee Retirement Income Security Act of
1974, as amended, the Americans With Disabilities Act of 1990, as amended, the Workers Adjustment
and Retraining Notification Act, as amended, the Immigration Reform and Control Act, as amended,
the Occupational Safety and Health Act, as amended, the Xxxxxxxx-Xxxxx Act of 2002, the Fair Credit
Reporting Act, the ADEA, the Older Workers Benefit Protection Act, as amended, the Texas Commission
on Human Rights Act, the Texas Law on Communicable Diseases, the Texas Equal Pay Act, the Texas
Military Leave and Re-Employment Rights Law, the Texas Wage and Hour Laws, and any other federal,
state, or local civil or human rights law or any other federal, state or local law, regulation or
ordinance. I further waive and release any claims or demands arising under federal, state or local
law, including but not limited to, common law claims relating to wrongful discharge (including
retaliatory discharge) or any other possible restrictions on the Company’s ability to terminate its
employees at will, including violation of public policy, breach of any express or implied covenant
of the employment contract, and breach of any covenant of good faith and fair dealing; civil
actions relating to negligence, compensation, defamation, invasion of privacy, fraud,
misrepresentation, breach of contract, denial of leave or other terms and conditions of employment,
or infliction of emotional or mental distress. I further acknowledge that this Waiver and Release
excludes any workers’ compensation claims currently pending or permitted by law and further
excludes any pension or unemployment compensation benefits to which I may be otherwise entitled,
any claims that controlling state law clearly states that may not be released by settlement, and
any claims that may arise after the date this release is signed.
I have signed this Agreement voluntarily and without coercion or duress. I acknowledge that I have
reviewed all aspects of this Waiver and Release; that I have carefully read and fully understand
all the provisions of this Waiver and Release; that I understand that in agreeing to this document
I am releasing the Company from any and all claims I may have against them and voluntarily agree to
all the terms set forth in this Waiver and Release; that I knowingly and willingly intend to be
bound by the same; that I was given at least 21 days to consider the terms of this Waiver and
Release; and that I have been advised in writing to consult with counsel. I knowingly and
voluntarily waive the remainder of the 21-day consideration period, if any, following the date I
signed this Waiver and Release. I have not been asked by the Company to shorten my time period for
consideration of whether to sign this release. The
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Company has not threatened to withdraw or alter the benefits due me prior to the expiration of the
21-day period nor has the Company provided different terms to me because I have decided to sign the
release prior to the expiration of the 21-day period. I agree with the Company that changes,
whether material or immaterial, do not restart the running of the 21-day consideration period. I
further acknowledge that I am voluntarily accepting the Company’s offer of additional benefits.
I understand that I have a seven-day period after signing this release in which to revoke in
writing any waiver of claims under the ADEA, and that this release will not be enforceable until
the end of the seven-day period. No benefits will be paid under this release until the eighth day
after I sign this release.
I understand that the furnishing of this Waiver and Release and corresponding consideration shall
not be deemed or construed at anytime for any purpose as an admission by the Company of any
liability or unlawful conduct of any kind. Based upon the signing of this Agreement, I affirm that
I have not filed, caused to be filed, or am presently a party to any claim, complaint, or action
against the Company in any forum or form. I further affirm that I have been paid and/or have
received all leave (paid or unpaid), compensation, wages, bonuses, commissions, and/or benefits to
which I may be entitled and that no other leave (paid or unpaid), compensation, wages, bonuses,
commissions and/or benefits are due to me, except as provided in this Agreement. I further affirm
that I have no known workplace injuries or occupational diseases and have been provided and/or have
not been denied any leave requested.
I understand and agree to return all confidential information, computer software or hardware,
files, paper, memoranda, correspondence, customer lists, financial data, credit cards, keys, tape
recordings, pictures, and security access cards, and any other items of any nature which were or
are the property of the Company. I further agree not to retain any copies of any such property in
my possession or under my control.
I agree not to disclose any information regarding the existence or substance of this Waiver and
Release, except to my spouse, tax advisor, and an attorney with whom I choose to consult regarding
consideration of this Waiver and Release.
I agree that the Executive Employment Agreement dated March 3, 2006, is attached hereto and
incorporated herein by reference. I agree that during the remainder of my employment and for a
period of two (2) years following the termination of my employment, I will not become an employee,
officer, director, agent, contractor or consultant of, or advisor to, EGS/Appleton, Xxxxxxx Inc.,
Xxxxxx and Xxxxx Corp., Genlyte-Xxxxxx, Acuity Brands — Lithonia Lighting, LeGrand, Leviton,
Littelfuse, Inc., Ferraz Shawmut subsidiary of Groupe Xxxxxxx Xxxxxxxx, and Xxxxxxx. This
paragraph supercedes Section. 10 of the Executive Employment Agreement dated March 3, 2006, which
will otherwise remain in full force and effect. I acknowledge and agree that this language
constitutes a written amendment as specified in and required by Section. 20 of the Executive
Employment Agreement dated March 3, 2006.
I agree that during the remainder of my employment and for a period of two (2) years following the
termination of my employment, that I will not, on behalf of myself or any other person, firm,
company, business, or other legal entity, directly or indirectly employ, solicit, influence, or
attempt to influence any management, sales, technical design or engineering employee,
representative or advisor of the Company to terminate his or her employment relationship with the
Company and/or to work in any manner for me, or any entity affiliated with me. This paragraph
supercedes Section. 11 of the Executive Employment Agreement dated March 3, 2006, which will
otherwise remain in full force and effect. I acknowledge
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and agree that this language constitutes a written amendment as specified in and required by
Section. 20 of the Executive Employment Agreement dated March 3, 2006.
I agree that during the remainder of my employment and for a period of two (2) years following the
termination of my employment, that I will not, on behalf of myself or any other person, firm,
company, business or other legal entity, solicit, contact, call upon, initiate communications with
or attempt to initiate communications with any customer of the Company for the purpose of selling
or providing products similar to or competitive with those manufactured by the Company. This
paragraph supercedes Section. 12 of the Executive Employment Agreement dated March 3, 2006, which
will otherwise remain in full force and effect. I acknowledge and agree that this language
constitutes a written amendment as specified in and required by Section. 20 of the Executive
Employment Agreement dated March 3, 2006.
I agree that the Secrecy Agreement and the Invention Assignment and Confidentiality Agreement
signed by me on April 19, 2006 (the Agreements), and the accompanying letter to me (the “Letter”)
to this Waiver and Release dated January 16, 2007, are incorporated herein by reference and that I
understand that my obligations under the Agreements remain in full force and effect.
I agree that I shall not for any reason whatsoever and whether directly or indirectly, either alone
or jointly with any person, firm or corporation at any time, in any way, make disparaging
statements about the Company or any of its related entities, their products, services or employees
to any person, entity, vendor, contractor, subcontractor, competitor, customer or potential
customer of the Company.
I agree that at the request of Xxxxxx or any of its related entities that I shall assist the
Company in any threatened or actual litigation concerning the Company or any of its related
entities, where I have in my possession or knowledge any facts or other matters which the Company
reasonably considers is relevant to such legal proceedings (among other things, giving
statements/affidavits, meeting with the Company’s legal and other professional advisers, attending
any legal hearing, and giving evidence during my salary continuation period. I further agree that
the Company will reimburse me for reasonable expenses properly incurred by me in giving such
assistance and if such assistance is required after the completion of my salary continuation
period, the Company will pay to me Two Hundred Dollars and No Cents ($200.00) per hour for any time
required.
I understand that following the seven-day revocation period, this release will be final and
binding.
Should any provision of this Agreement be declared invalid by a Court of competent jurisdiction,
the remaining provisions shall remain in full force and effect.
The validity of this Waiver and Release shall be construed under Texas law. This Waiver and
Release, the Executive Employment Agreement, the Agreements, and the Letter constitute the complete
and total agreement between the Company and me. I represent that I am not relying on any other
agreements or oral representations not fully expressed in this Agreement. I agree that this
Agreement shall not be modified, altered, or discharged except by written instrument signed by an
authorized Company representative and me.
As used in this Agreement, the word “Company” shall mean Xxxxxx US, Inc., its parent, incorporated
divisions, wholly-owned subsidiaries, affiliates, successors and assigns, as well as its agents,
employees and officers acting in their individual and/or official capacity.
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I SIGN THIS RELEASE VOLUNTARILY AND AM NOT RELYING ON ANY STATEMENT OR PROMISE OTHER THAN AS
CONTAINED IN THIS RELEASE. I AGREE THAT I HAVE BEEN AND AM ADVISED IN WRITING TO CONSULT WITH AN
ATTORNEY PRIOR TO SIGNING THIS RELEASE:
Signed by:
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For the Company: | |
/s/ Xxxx Xxxxxxxx |
/s/ Xxxxx X. Xxxxxxxx | |
Xxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx | |
Dated: 1/18/07
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Dated: 1/16/07 | |
Witnessed by: |
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